Supreme Court Won’t Stop Texas Law Closing Abortion Clinics

Supreme Court Justice Antonin Scalia issued an opinion today indicating the Supreme Court will not get involved in a case out of Texas that has abortion facilities there appealing a law that has closed numerous abortion clinics that can’t protect women’s health.

In a big victory for pro-life advocates in Texas earlier this month, the Fifth Circuit Court of Appeals overturned Judge Lee Yeakel of the Western District Court in Austin and restored key portions of a pro-life law in Texas that will ultimately stop abortions and could close abortion clinics. Abortion clinics appealed that decision to the Supreme Court and Justice Scalia issued a ruling today saying the high court will not get involved.

“The underlying legal question — whether the new Texas statute is constitutional — is a difficult question. It is a question, I believe, that at least four members of this court will wish to consider irrespective of the 5th Circuit’s ultimate decision,” Justice Antonin Scalia wrote with Justices Clarence Thomas and Samuel Alito concurring. “I would maintain the status quo while the lower courts consider this difficult, sensitive, and controversial legal matter.”

The justices voted 5-4 to leave Texas’ pro-life provisions in place and the four Democrat-appointed pro-abortion justices all voted to overturn the pro-life measure. Justice Stephen Breyer write a dissenting opinion saying he expected the case to return to the Supreme Court.

Chief Justice John Roberts and Justice Anthony Kennedy did not join an opinion or write their own, but they sided with Scalia, Thomas and Alito.

With the Supreme Court not intervening, the full appeals court has scheduled a hearing on the case for January to consider the lawsuit. The abortion businesses can proceed with the case there or ask another Supreme Court justice to intervene and stop the law from taking effect while the case continues.

Abortion activists have not challenged that part of the law which prohibits the killing of unborn children who have reached the developmental milestone of being able to feel pain which substantial medical evidence places at 20 weeks, if not earlier. Nor are they challenging the requirement that all abortions be performed in ambulatory surgical centers, noting that this portion of the law does not go into effect until September 2014.

The judge blocked part of the law that required its doctors to have the right to admit patients to local hospitals. Texas became one of several states that require abortion doctors to have admitting privileges at local hospitals so women can be treated when they are victimized by botched abortions. Judge Yeakel also ruled that the part of the law that requires abortion businesses to follow FDA protocol, by only dispensing the dangerous RU 486 abortion drug in person, can apply except when the life or health of the mother is in danger — even though abortions routinely put women’s lives and health at risk.

Responding to the decision, three women on the appeals court panel overturned him:

The judges, Priscilla R. Owen, Jennifer Walker Elrod and Catharina Haynes, wrote that “there is a substantial likelihood that the state will prevail in its argument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion.” Furthermore, they wrote,”we also conclude that the state has made a strong showing of likelihood of success on the merits, at least in part, as to its appeal of the injunction pertaining to medication abortions.”

Tennessee and Utah also have such admitting privileges provisions in place while Alabama, Kansas, Mississippi, North Dakota and Wisconsin passed them but are subject to lawsuits.

In staying Judge Lee Yeakel’s ruling against House Bill 2 (HB 2), the New Orleans court green-lighted the 30-mile rule. Immediately, any doctor who seeks to commit an abortion must first secure admitting privileges at a hospital within 30 miles of the abortion facility.

The Fifth Circuit allowed most of the new restrictions on the abortion drug, RU-486, to go into effect.

The ban on all abortions after the unborn child reaches the five-month mark of development was not challenged and went into effect Tuesday.

Elizabeth Graham, Director of Texas Right to Life, told LifeNews she was delighted by the ruling and she applauded the work of pro-life Texas Attorney general Greg Abbott.

She said: “Legislators worked so hard to pass House Bill 2 because they are not only concerned about protecting the unborn, but also about women going to abortion clinics with sub-standard conditions and unsanitary equipment. The provisions being challenged in court are intended to keep Gosnell-like predators out of Texas. Ironically, one of the abortion providers for the plaintiffs testified in the hearing last week that he had secured such privileges at a number of hospitals, inadvertently helping the defense. Our Attorney General and his team have done a masterful job in defending House Bill 2 and pursuing the law taking effect immediately.”

“The other victory this week is that abortion is now banned at five months, sparing preborn children who feel pain from excruciating dismemberment. This is a historic week in Texas for the Pro-Life cause, for women’s health, and most importantly, for the unborn,” Graham continued.

After the lower court ruling, Abbott petitioned the Fifth Circuit for a trial date in January of 2014 during which the full arguments on the constitutionality of two provisions of HB 2 will be heard. The Fifth Circuit’s move to overturn the injunction could signal that this court recognizes these two provisions as common sense legislation to protect the health and safety of women who are abortion-vulnerable and that the challenge has little chance of success. The 30-mile rule has been challenged and upheld in court in other states.